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IN THE HIGH COURT OF ORISSA
P.K. Misra, J.
BRUNDABAN SAHU AND ANOTHER - APPELLANT
Versus
PABITRA KUMAR SAHU - RESPONDENT
Civil Revision No. 153 of 1997
Decided On : 14-10-1998
AMENDMENT OF PLAINT - ORDER 6, RULE 17, CPC - WITHDRAWAL OF ALTERNATIVE PRAYER - RIGHT OF PLAINTIFF - EXCEPTIONS - VESTED RIGHT OF DEFENDANT - PREJUDICE - COUNTER CLAIM - LIMITATION - ADDITIONAL WRITTEN STATEMENT - RELATION BACK OF AMENDMENT.
Fact of the Case:
Plaintiffs filed a suit for partition along with a prayer for specific performance of a contract or, in the alternative, for the defendant to purchase the property by paying the balance consideration money. The defendant agreed to the alternative prayer in his written statement. At a later stage, the plaintiffs filed an application under Order 6, Rule 17, CPC to delete the alternative prayer. The trial court rejected the application on the ground that it would prejudice the defendant, as a separate suit for specific performance would be barred by limitation.
Finding of the Court:
The court held that the plaintiffs had the right to withdraw the alternative prayer under Order 23, Rule 1, CPC, but this right was not absolute. It could not be exercised if it resulted in defeating a right that had already vested in the defendant. However, in this case, no vested right had been created in favor of the defendant by his agreement to the alternative prayer. The court also held that the defendant could still claim specific performance by way of counterclaim, as the necessary averments were already in the pleadings. However, the defendant would have to amend his written statement to raise the counterclaim, and this amendment would relate back to the date of filing of the original written statement.
Issues: 1. Whether the plaintiffs had the right to withdraw the alternative prayer under Order 23, Rule 1, CPC? 2. Whether the defendant had a vested right to specific performance of the contract? 3. Whether the defendant could still claim specific performance by way of counterclaim?
Ratio Decidendi: 1. The court held that the plaintiffs had the right to withdraw the alternative prayer under Order 23, Rule 1, CPC, but this right was not absolute. It could not be exercised if it resulted in defeating a right that had already vested in the defendant. 2. The court held that no vested right had been created in favor of the defendant by his agreement to the alternative prayer. 3. The court held that the defendant could still claim specific performance by way of counterclaim, as the necessary averments were already in the pleadings. However, the defendant would have to amend his written statement to raise the counterclaim, and this amendment would relate back to the date of filing of the original written statement.
Final Decision: The court allowed the plaintiffs' application for amendment of the plaint, subject to the condition that they pay Rs. 750/- to the defendant as costs. The court also directed the defendant to be allowed to amend his written statement to include a counterclaim.
JUDGMENT :
P.K. Misra, J. - Plaintiffs have filed this revision against the order of the trial Court refusing their petition under Order 6, Rule 17, CPC (in short, the "C.P.C.") for amendment.
2. The suit was primarily one for partition along with certain other reliefs. Paragraph-4(a) of the prayer portion of the plaint reads as follows:
"4(a). Directing the defendant to deliver possession of the suit huller-cum-sheller rice mill in the same sound condition on the date of when it was entrusted to the defendant to run the same on behalf of the plaintiff in his capacity as manager or in the alternative, direct the defendant to perform his part of contract in purchasing the same from the plaintiff under proper and valid."
The defendant in paragraph-13 of his written statement stated :
"13. That as per the agreement to sell dated 19.7.1985 the defendant was always ready with money and willing to purchase the interest of the plaintiff in the land and the mill as per agreement and was also expressing his readiness and willingness from time to time both orally and also in writing. The defendant is now also ready and willing to specifically pay for the contract dated 19.7.1985 and will pay the balance consideration before the Sub-Registrar on execution of the sale deed as per the contract as and when directed by the Court. The plaintiff has also prayed the same relief of specific performance of the contract in para 4 A' of the prayer in the suit. So the Defendant prays for passing a part Decree of specific performance of contract dated 19.7.1985".
After evidence in the case was adduced and the matter was posted for hearing arguments, the plaintiffs filed an application under Order 6, Rule 17, CPC for deleting the alternative prayer contained in paragraph 4(a) to the following effect :
".......or in the alternative, direct the defendant to perform his part of contract in purchasing the same from the plaintiff under proper and valid sale deed to be executed in favour of the plaintiff."
The prayer for amendment was resisted by the defendant. It was contended that the plaintiffs should not be allowed to withdraw the alternative prayer at the belated stage as a valuable right had already accrued to the defendant. It was further claimed that the defendant would not be in a position to claim specific performance of contract at present, as such a right would be barred by limitation.
3. The trial Court rejected the prayer for amendment mainly on the ground that the petition for amendment had been filed at a belated stage when the case had been posted for argument and if such a prayer would be allowed, the defendant would be left with no choice but to file separate suit for specific performance or file a counter claim and as such the litigation is likely to drag on for longer period. The trial Court also observed that claim for specific performance by the defendant would be time-barred and as such defendant would be highly prejudiced if the proposed amendment seeking for withdrawing the alternative prayer would be allowed.
4. The learned counsel appearing for the plaintiff-petitioners contended that the proposed amendment would not alter the nature of the suit and plaintiffs only wanted deletion of the alternative prayer contained in paragraph- 4(a) of the prayer portion and allowing such amendment would not change the nature of the suit. It is further submitted that keeping in view the provisions contained in Order 23, Rule 1, C.P.C., the plaintiffs have the absolute right of abandoning any claim or portion of a claim at any time.
The learned counsel for the defendant-opposite party has submitted that though ordinarily amendment can be allowed at any stage, where such amendment causes irreparable injury to the other side, it should not be allowed. It has been further submitted that though Order 23. Rule 1, C.P.C. gives the right to a plaintiff to withdraw any claim or part of the claim, such right is not absolute and where by such withdrawal of a claim o
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